India Tomorrow
SRINAGAR—After four years, Supreme Court will hear a batch of petitions challenging the abrogation of Article 370 and the bifurcation of the erstwhile state of Jammu and Kashmir into two union territories.
A five-judge constitutional bench led by Chief Justice of India (CJI) D Y Chandrachud will hear the case, on July 11. Other members of the bench include Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.
Over 20 petitions have been filed to challenge the constitutional validity of the Centre’s decision to abrogate Article 370.
The case has been pending before the Supreme Court for nearly four years now. The matter had not come up for consideration after a five-judge bench refused to refer it to a larger bench in March 2020.
The case had since been mentioned several times for early hearing. The petitions challenge the Presidential Orders of August 5–6, 2019, as well as The Jammu and Kashmir Reorganisation Act, 2019.
On August 5, 2019, the Centre passed Constitution (Application to Jammu and Kashmir) Order, 2019, using the power under Article 370(1)(d), superseding the 1954 Presidential Order that introduced Article 35A, which empowered the state of J&K to define who is a permanent resident and make special laws for them.
The order indicated that the provisions of the Indian Constitution shall apply to J&K and that references to the Sadr-i-Riyasat and the Government of J&K will be construed as references to the J&K Governor acting on the advice of his Council of Ministers. Moreover, any reference to the Constituent Assembly of J&K shall be construed as a reference to its Legislative Assembly.
Not only was J&K stripped of the special status, but the J&K Reorganisation Act of 2019 downgraded J&K into two different UTs. Article 35A was incorporated by an order of President Rajendra Prasad in 1954 on the advice of the Jawaharlal Nehru Cabinet. The Parliament was not consulted when the President incorporated Article 35A into the Constitution through a Presidential Order issued under Article 370.
The petitioners have contended that the August 5 order and the Jammu and Kashmir Reorganisation Act of 2019 were arbitrary. The petitions have also challenged the proclamation of the President’s Rule in the State in December 2018.
It has been contended that the Presidential Order of August 5 substituted the concurrence of the Governor of the State government to change the very character of a federal unit.
The petitions contended that Presidential Order took the cover of a temporary situation, meant to hold the field until the return of the elected government, to accomplish a fundamental, permanent, and irreversible alteration of the status of the State of Jammu and Kashmir without the concurrence, consultation or recommendation of the people of that State, acting through their elected representatives.
The petitions contended that the August 5 Order, by replacing the recommendation of the ‘Constituent Assembly’ with that of the ‘Legislative Assembly’ in order to alter the terms of Article 370, assumed that the Legislative Assembly of the State of Jammu and Kashmir had a power that its own Constitution, under Article 147, denied to it.
